Land Tenure and Natural Resource Conflict in Indonesia

Land tenure arrangements have undoubtedly
influenced the way in which natural resources are controlled by the state
and indigenous communities in Indonesia. They reflect the imposition of
Western tenure systems on existing customary systems. In many cases, these
arrangements replace the diverse and complex tenure systems used by local
communities with a unified and simplified framework developed by the
Dutch. Conflict over land or natural resources has increased as a
consequence of the contradiction between these arrangements. The following
sections describe state land-tenure systems in Indonesia and indigenous
customary land-tenure systems in Kalimantan to shed further light on this
issue.

State-Imposed Tenure Systems in Indonesia

Even though the state did not formally
own all of the ‘free’ land, the notion of state-controlled land was
interpreted, during the Suharto period, as an exclusive authority over
any territories classified as kawasan hutan
(forest area) — including all aspects of human activities
within it (McCarthy 2000: 93). In other words, the state had an
authority to divide forest areas into several land use categories with
different policy objectives, such as timber production and conversion of
the forest area into agricultural land, using the Basic Forestry Law (No. 5/1967) as a legal
framework. As a result, a Forest Land Use
Consensus Plan (Tata Guna Hutan
Kesepakatan) was established in 1982. This land use plan
classified 75 per cent (or 144 million hectares) of Indonesia’s land as
forest areas (Evers 1995: 6), and still wields influence over the
planning process for such areas, although the Land Use Management Act (No. 24/1992) gave the
National Development Planning Agency (Badan Pembangunan dan Perencanaan
Nasional or BAPPENAS), the Ministry of Home Affairs and the Ministry of
Environment (Kementrian Lingkungan Hidup) more possibilities to play a
key role in spatial planning (McCarthy 2000: 94–5). During this period,
adat and hak
ulayat were not fully recognised or understood, especially in
the outer islands of Indonesia (outside Java and Bali).

When Suharto resigned in mid-1998, the Habibie
government was forced to address problems arising from the Basic Forestry Law of 1967, and a new Basic Forestry Law (No. 41/1999) was released
in late 1999. However, while this law recognises and understands adat and hak
ulayat, it only provides possibilities for the adat community to manage and use adat forest ‘as long as they are evidently in
place and their presence is acknowledged’ (Article 67). In other words,
the adat community can only obtain
rights to use and manage adat land or
forest if the state acknowledges their existence. They are not able to
own land.

Moreover, Article 5 of the new Basic Forestry Law states that the Indonesian
state will only recognise community rights to forest land if it can be
proven that:

the adat
community in question is still in a group form (paguyuban or rechtsgemeenschap) and live in their own
adat area;

the adat
community still follow their adat
institutions;

the adat
community forest area has clear boundaries, approved and
acknowledged by their neighbours;

there is an adat
law framework related to forest that is still practised;
and

the adat
community still relies on the forest for subsistence, religion and
social activities based on adat
rule.

While this new regulation may give some
new opportunities to adat communities,
a management plan for adat forest has
to be approved by the Ministry of Forestry (Article 10) and the plan
must consider existing land use planning determined by the RegionalLand Use
Plan (Rencana Tata Ruang
Wilayah).

In other words, the Indonesian state only
acknowledges the rights of adat
communities in principle rather than in practice. In principle, all
forest area is controlled directly by the state framework, which gives
the adat community the right to use and
manage their adat forest area, but not
to own it. However, the Basic Agrarian
Law states that existing hak
ulayat cannot be acknowledged as ‘land controlled directly by
the State’ (Evers 1995: 5). Adat rights
are not, therefore, explicitly clear in forest law, although they have
been clarified further in Regulation No. 5/1999, which provides
guidelines on how to solve problems related to the hak ulayat of adat
communities. This attention to the adat
community seems to be compatible with the idea of regional
autonomy at the district level, which is governed by Law No. 22/1999 and
Law No. 25/1999, and allows district governments to secure revenues from
their own natural resource base.

Nevertheless, the new Basic Forestry Law gives adat communities some recognition of their
rights to land and natural resources. Therefore, there is an opportunity
for community mapping to play a crucial role in helping indigenous or
adat communities to document their
adat area, including the rights that
are attached to it, and to help them create adat
management plans to promote their own community-based natural
resource management.

Adat Tenure Changes in East
Kalimantan

East Kalimantan is one of the richest
natural resource provinces in Indonesia. The province, which has a
population of around two million, covers 211 440 square kilometres
or 10.55 per cent of the Indonesian land area (Safitri et al. 1997: 26).
The diversity of ethnic groups and sub-ethnic groups that live in this
area reflects the diversity of resource control and tenure systems.
Generally, within a community, resources concentrated in a particular
area (such as bird nest caves) can be considered private property. Some
wild resources, such as rattan, are also domesticated and planted by
villagers in areas where it is abundant (see Eghenter, this volume). On
the other hand, scattered resources, such as gaharu(agar wood)
tend to become common property because it is difficult to privatise
these resources or allocate them to individuals (Momberg et al.1997: 170).

Most adat
communities in East Kalimantan have formal control over territorial
claims to forest areas, which have been marked geographically on natural
features such as mountain ranges and rivers by past warfare or
negotiations among different tribal groups (Fox 1993: 306; Momberg et
al. 1997: 170). This control has long been governed by customary law
(hukum adat) — a web of access rules
which govern the use, exploitation and conversion of particular forest
products (Fox 1993: 305). The largest territory covers ‘continuous
villages’ with the same language, and the second largest territory
covers three or four villages using a ‘lieutenant customary law’
(temenggung adat). Although villages
and tribal groups are diverse, they share common land and tree tenure
systems. Outsiders have to apply for permission to access these areas or
resources. Sanctions are also applied as a form of customary law, or
adat fines apply if violations occur in
relation to resource use (Momberg et al. 1996: 6). These adat communities usually practize rotational
swidden cultivation and harvest timber and non-timber forest products
using their adat management systems.
These systems may differ from one adat
community to another but, in general, adat communities have traditionally used their
local knowledge of ecosystems and soil properties to manage natural
resources (Sorensen 1997: 247).

In recent years, a range of internal and external
pressures has weakened indigenous tenure systems. The weakening of
cultural, social and family ties is usually a response to external
pressures. Less cohesion and social control within communities causes
‘individualisation of communal rights’. The absorption of communal
rights within an adat community creates
a situation where outsiders, including government, have unlimited access
to adat land for agriculture, mining,
logging, road construction and other ‘land hungry’ development
activities. Conflicts arise between these large-scale developments and
local people because the state has failed to acknowledge adat rights when allocating concessions and
development permits. Moreover, adat
communal lands have been threatened by ‘unofficial’ encroachment, such
as illegal land purchases and illegal logging, which are often supported
by police, armed forces or local government staff (Evers 1995: 12;
Eghenter 2000a).

Sometimes, adat
institutions also break down when community members seek to gain quick
profits from particular resources, such as agar wood, rattan or timber
(Sorensen 1997: 249). In the past, noble families in communities with
social stratification, like the Kenyah for example, more or less
willingly devolved their lands to the larger community. However, a
desire to accumulate wealth and engage with the modern world has driven
many of these élites to exploit natural resources for personal gain. For
instance, after the fall of Suharto many élites benefited from timber
harvesting after Permits to Use and Harvest Timber (Ijin Pemanfaatan dan
Pemungutan Kayu) based on Forest Product Harvesting Rights (Hak
Pemungutan Hasil Hutan or HPHH) were allocated to individuals, primarily
members of the élite within a given community. This is despite the fact
that legislation governing these permits (Regulation No. 6/1999)
stipulated that these rights should be allocated to adat communities through cooperatives.[2] Dramatic environmental change resulting from natural
disasters, such as the 1997–98 forest fires, has also threatened adat resource management systems as these tend
to break down when the resources become scarce and more valuable.